This piece is part of a three-part series examining the Obama administration’s Supreme Court brief arguing that California’s Proposition 8 violates the U.S. Constitution’s equal protection provisions. You can read Part 1 here and Part 3 here.

By Jacob Combs

In a Supreme Court brief filed last week on behalf of the Obama administration, Solicitor General Donald Verrilli, Jr. argued that Proposition 8 violates the U.S. Constitution’s equal protection provisions. Specifically, Verilli pointed to California’s broad recognition of domestic partnership rights for same-sex couples to make his case that the constitutional amendment banning marriage equality in the Golden State should be invalidated because it treats two equivalent classes of individuals differently.

But Verrilli’s brief also included one important detail that could potentially have important ramifications for the eventual outcome of the case before the high court: California is not the only state in the union that has extended significant legal rights and obligations to same-sex couples.

The ‘eight-state solution’: A possible middle ground for a conservative Supreme Court

Verrilli notes in his brief that “[s]even other states provide, through comprehensive domestic partnership or civil union laws, same-sex couples rights substantially similar to those available to married couples, yet still restrict marriage to opposite-sex couples”: Delaware, Hawaii, Illinois, Nevada, New Jersey, Oregon and Rhode Island. And even though it doesn’t explicitly say so, Verrilli’s brief clearly provides a framework for what is becoming known as the “eight-state solution”—a resolution to the Prop 8 case at the Supreme Court that would bring marriage equality to all eight states that currently provide marriage-like benefits to same-sex couples, but would leave marriage bans intact in the many other states where they are already on the books.

When viewed in this light, Verrilli’s seemingly narrow brief begins to open up, providing the Supreme Court an additional path by which it can strike down Prop 8 but keep most other marriage bans alive. Essentially, the reasoning for limiting such a ruling to only those eight states with civil union or domestic partnership protections would be that states whose laws and public policy do not recognize same-sex and opposite-sex couples as equals could rationally choose to provide different designations to those couples’ unions without violating equal protection.

A Supreme Court decision along these lines would likely be a compromise one that would hold that states which provide the rights of marriage to same-sex couples must also provide them the designation of marriage. In such a ruling, the Court could conceivably avoid the larger question of the constitutionality of marriage equality bans in general by focusing specifically on the manifest equal protection violation inherent in states with civil union or domestic partnership laws.

The true game-changer in Verrilli’s brief: Heightened scrutiny

An ‘eight-state solution’ decision could certainly resolve the constitutionality of Prop 8. But the central question of whether marriage equality bans are constitutional in any state would remain, and the Obama administration’s brief includes a ticking time bomb that could lay the groundwork for future legal challenges: heightened scrutiny.

Early on in Verrilli’s brief, the Solicitor General makes the case that laws which classify according to sexual orientation should be considered under heightened scrutiny, a more searching form of judicial review which places the burden of proof on the government as opposed to the individual and can only be cleared if the law is–as the Supreme Court has put it–“substantially related” to an “important governmental objective.”

If the Supreme Court took the administration’s position, brought marriage equality to the eight states with domestic partnership or civil union laws and used heightened scrutiny to make this case, the stage would be set for future litigation challenging marriage bans across the United States. Even if the Court declined to look into this issue in the Prop 8 case, the heightened scrutiny standard would open the door to future litigation in which the states that withhold marriage, parenting and adoption rights from same-sex couples would have to prove, as noted above, how such restrictions further an “important governmental objective.”

In all likelihood, they would be unable to do so, and another marriage equality case—probably out of one of the red states—would make its way to the Supreme Court, which would eventually establish marriage equality nationwide. In the meantime, however, district and circuit courts across the country would have the opportunity to grapple with the constitutionality not just of marriage bans, but of adoption bans, lack of employment protections and other issues related to LGBT rights—all under the banner of heightened scrutiny.

Because of these nuances, the Obama administration’s argument is in fact is not a narrow one, but rather a broad, expansive, dramatic advancement of legal protections for LGBT rights across the nation. The fact that Verrilli and Obama have managed to lay the foundation for such a watershed Supreme Court decision while simultaneously presenting the brief as specifically tailored to the facts of the Prop 8 case shows just how nuanced the president’s view of the marriage equality debate is.

Tomorrow, in Part 3 of this series, I’ll examine the effect that a Supreme Court ruling invalidating civil unions and domestic partnerships as unconstitutional could have on the future of the marriage equality movement in more conservative states.

[…] This piece is part of a three-part series examining the Obama administration’s Supreme Court brief arguing that California’s Proposition 8 violates the U.S. Constitution’s equal protection provisions. You can read Part 2 here. […]